Outline Criminal Law 9/8/09 Punishment 5 reasons for punishment: o Deterrence make society see that a great penalty

y is great for a crime, dont do it unless you want the same penalty. General deterrence punishment is meant to prevent society to do the act in the future Specific deterrence punishment is meant to prevent a single person from committing the crime again. o Incapacitation cant commit certain crimes when you are in jail a preventative measure. o Rehabilitation that someone can learn from their crimes can learn to be a productive member of society. o Retribution - eye for an eye seeks to punish just because they deserve it Punishment is proportional to the crime. o Denunciation goal is to express publicly societys disapproval of blameworthy conduct. Seeks to educate society about and reinforce the norms reflected in the criminal law. Problems 2.4 2.14 are good practice for above according to priesters first email. Pgs. 28 33 making criminal law o common law ex. Murder has always been known to be against law can be retrospective gives great weight to the principle of stare decisis idea that in determining the law applicable to a partivular situation a court is bound by the decisions of earlier courts that have spoken on the issue. o statute state/federal rules wrote against a certain act o how courts rule, precedent o constructions of statutes principle of legality o a person may not be punished unless his conduct was defined as criminal at the time of the offense. o 3 corollaries: criminal statutes should be understandable to reasonable law-abiding persons they should not delegate basic policy matters judicial interpretation of ambiguous statutes should be biased in favor of the accused Keeler ideas from the case o Due process Defendant has every right to know what is and isnt legal o Ex post facto (constitution defines it) cant be charged retroactively with a crime. Ex.- if congress makes a law against DUI on 1/1/2010, you cant be charged with doing this based on an incident happening 9/9/1969. Myspace = due process Sexting = interpretations Clinton = perjury Rule of Lenity: pg 103 to construe a penal statute as favorably to the defendant as its language and the circumstances of its

application may reasonably permit; the defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of language used in a statute. Interpretations: pg 127 o Intentionalism: what the law makers actually meant by the statute. Holy Trinity case o Textualism: word for word interpretation. Do not take into consideration the law makers intentions or contemporary or specific circumstances. Justice Scalia is all about it. o Dynamic theory: statutes should be interpreted in light of ttheir present societal, political and legal context. Involves the present-day interpreters understanding and reconciliation of three different perspectives, no one of which will always control: 1. The statutory text 2. The original legislative expectations surrounding the statutes creation, and 3. The subsequent evolution of the statute and its present context. vagueness: if the court concludes that the statute is hopelessly incoherent, then the statute cannot be enforced, or if the statute is being interpreted in a crazy way. When a court decides a statute unconstitutional for vagueness they look at 2 things: 1. Adequate notice (hypothetical) would an ordinary person be able to know about the statute and its details this is called legal fiction. 2. enforcement limits or guidelines there must be some limitation on the ability of policemen to round ppl up. examples for vagueness: City of Chicago v. Morales and US v. Sattar a vague statute is vague right on its face. The whole statute is vague Ways to know if it is vague: o Lost of ppl arrested for it (ex. Morales) o Can charge ppl doing all sorts of activity o How police enforce it

Actus Reus/Mens Rea/MPC Conduct Actus reus - MPC 1.13(9): element of an offense means I. Conduct II. Attendant circumstances circumstance that go along with conduct III. Result of conduct Actus Reus guilty act or conduct 1.13 general definitions pg 885 a. included in the description of the forbidden conduct; or b. establishes the required kind of culpability pg. 178 - MPC 2.01 - Actus Reus (1) a person is guilty of an offense only if his liability is based on conduct that includes a voluntary act or the omission to perform an act of which he is physically capable.

(2) The following are not voluntary acts within the meaning of this section: a. A reflex or convulsion; b. A bodily movement during unconsciousness or sleep; c. A conduct during hypnosis or resulting from hypnotic suggestion; d. A bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual. (3) Omission Liability for the commission of an offense ma not be based on an omission unaccompanied by action unless: a. The omission is expressly made sufficient by the law defining the offense; or b. A duty to perform the omitted act is otherwise imposed by law. (4) Possession is an act, within the meaning of this section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession. a. Constructive possession actual possession is lacking but the person nonetheless exercises some sort of control over the item. II. Conduct is generally voluntary if the actor made a conscious choice to act, even if coercion influenced the choice.

III.

- Ex. For 2.01(1) & (2) voluntary acts - Robinson v. California def was not found guilty because he did not voluntarily use drugs. He is an addict and therefore has no control over what he does in this sense. - Powell v. Texas def was addicted to alcohol so could not be convicted for drinking but was convicted for being drunk in public. - Martin v. State pg 177 Officer brought a drunk man out of his house and accused him for being drunk in public. He was involuntarily taken out of his house while drunk. Convicted in lower court. Court of appeals reversed pg 179 180 girl kills her family during sleep and was not voluntary Ex. For 2.01(3) omission - Jones v. US Defendant failed to take care for illegitimate child of a friend, child died of malnutrition, died due to inaction. Fact that you have a moral obligation doesnt mean you have a legal obligation to do it like a contract or family member. Duty to report or rescue pg 193 Two friends one kills a kid in a bathroom while the other watches and doesnt report the act. Didnt get in trouble because it was not a duty to report at the time but laws were changed after this. Ex. Hypothetical for Possession 2.01(4) pg 194 problem 4.10 Sally wasnt guilty of possession, only Sam by constructive possession

IV. V.

Difference between act and omission: failing to stop at a red light = omission running a red light = act

Mental States: MR and Common Law VI. MPC 2.02 (1) Person is guilty of an offense if they have MR required for offense. (may have more than one. (2) Purposely, knowingly, recklessly (default), negligently a.) purposely conduct and results - conscious objective to do the conduct that will bring about the result. (conduct and result are related.) Circumstance aware, believe or hope that the circumstances exist. b.) knowingly conduct or circumstances aware Result practically certain. - Aware of the conduct or the circumstances exist but result is practically certain (know something will happen but hope result will not occur) c.) recklessness consciously disregards substantial and unjustifiable risk (unacceptable chance) that conduct/result will occur, circumstance exists. You must consider the possibility. d.) negligence should be aware inadvertently creates a substantial and unjustifiable risk. (3) Reckless is default when no MR is mentioned in statute. (4) read the MR word all the way though unless there is a contrary meaning. (5) if you prove negligence, you can also prove P, K or R but if you prove P, you cant go down to K, R or N. you can go up but not go down MPC 2.05 no strict liability in the MPC so any crime must have MR under MPC. VII. VIII. 3 elements to a crime (actus reus): Conduct, Circumstances, Result Collateral MR with purpose to if a statute mandates that the conduct and circumstances must happen but mentions that the actor just needs to try for the result, not actually accomplish them, we have collateral MR. ex. Pg 237 Penal Code section 20 Public welfare offenses are the only exceptions to the MR rule.

IX.

X. XI. XII. XIII. XIV. XV.

Common Law states Florida, California, New York and the federal govt use common law. All the others use MPC. Malum inse vast majority of cases which require MR. Malum prohibitum public welfare offense bad because we say so. paper crime US v Balint People v. Taylor cane sword it was a strict liability case but court found that legislature intended recklessness (at least) of the cane being an actual sword is necessary. Morissette Pg 231 govt owned bomb shell steel collected and sold by Morissette. Mistake of Fact Problem 5.13 pg 244 Whether ivan is aware that what he has is cocaine? Mistake of facts is a defense if it negates the MR for the statute. He thought it was sugar so it negates the MR that he knows it was cocaine Therefore, ivan is not guilty.

XVI.

MPC 2.04 (2) lesser crime, if you only have the lower MR, you can be convicted of that MR crime You can only be found guilty for the MR you have or had - specifically for cases that have more than one degree. intoxication and Mens Rea 2.08 intoxication applies to any substance that has that effect (narcotics and pharmaceuticals) not a defense unless it negatives the elements of the offense. - applying the same rule as if it was a mistake: (1) - intoxication of the actor is not a defense unless it negative an element (2) When recklessness establishes an element of the offense, if the actor, due to intoxication, is unaware of risk of which he would have been aware had he been sober, such unawareness is - it is the sober conscious disregard that the court cares about not the drunk disregard. -

XVII. XVIII. XIX.

Mistake of Law MPC MPC mistake of law provisions 2.02(9) Culpability as to illegality Neither knowledge nor recklessness or negligence as to whether conduct constitutes an offense or as to the existence, meaning or application of the law determining the elements of an offense is an element of such offense, unless the definition of the offense or the Code so provides.

Ignorance or mistake of law is never a defense. The MR is not necessary in a case such as this to prove guilt. The person had the MR to do the act but not the MR to commit a crime (because they may not know it was against the law to do what they did.) Mistake of fact is whether there is a MR to negate Mistake of law if a legal rule is challenged then no defense I didnt think that what I committed was a crime this is not a defense I didnt commit a crime this is a defense.

Common Law Mens Rea and Mistake - Mistake of criminal law is not a defense. There are no exceptions not even something a police officer says. Category Definition Mistake Specific intent Special mental Honest Mistake element(MR) that goes above and beyond/ in addition to the AR General Intent - The intent to Honest and reasonable commit the crime mistake of fact. itself(AR) EXCEPT: there is strict - You have criminal liability when the lesser mens rea (not legal wrong doctrine specific intent) applies. simple criminal culpability (if you are unreasonable, could be deemed negligence) - To negate general intent ask: was it an honest AND reasonable mistake? If honest, but not reasonable, then general intent is still there. Strict liability Public welfare offense No available defense usually = a crime that is not malum in se. These are malum prohibitum Mistake of fact is the only mistake that can be used as a defense.

Lesser Legal Wrongs Common Law only applies to general intent. - most common with cases that have different degrees of the crime. - common law courts will find you guilty of the higher degree crime because the crime itself is unreasonable despite your mistake. - Lesser legal wrongs and moral wrongs doctrine only apply to general intent crimes.

o In other words, any crimes with degrees, is a general intent crime and a mistake of fact does not save defendant from the more severe charge. distinctions between common law and MPC o under common law, default is negligence and under MPC, reckless o MPC allows for lesser legal wrongs common law doesnt

Post midterm Review: Color index: Red = need to move section possibly. *** - need to ask professor question I. Attempt- consists of two parts: A specific intent to commit the crime Specific intent crimes: Solicitation: intent to have the person solicited commit the crime, Attempt: intent to complete the crime, Conspiracy: intent to have the crime completed, first degree premeditated murder (where so defined by statute): premeditated intent to kill, assault: intent to commit a battery, larceny and robbery: intent to permanently deprive another his interest in the property taken, burglary: intent at the time of entry to commit a felony in the dwelling of another, forgery: intent to defraud, false pretenses: intent to defraud and embezzlement: intent to defraud. An overt act in furtherance of that intent. Timeline of AR Bad thoughts|_________MPC|_____Uneq|_____Prox.|_____Last act|______Do Crime o MR for any attempt crime must be purpose, or specific intent to commit the crime. MPC test MPC 5.01(c) AR: (1) does or omits to do, something that is a substantial step in planning to commit the crime. (2) substantial step must include strong corroboration of the actors criminal purpose. o Examples: if any of these, then guilty Bad thoughts is the only thing that doesnt count: searching for the victim, scouting, unlawfully entering a bldg where defendant contemplates committing the crime, possessing tools or instruments necessary for committing the crime, or soliciting an innocent agent to do an element of the crime.

Unlike CL, the MPC focuses on what defendant has done rather than what remains to be done. CL tests: Unequivocality test Ask how close would you get to committing the crime if we didnt stop you? o An attempt occurs when a persons conduct, standing alone, unambiguously manifests his criminal intent. Physical proximity test o The defendants conduct need not reach the last act but must be proximate to the compelled crime. o Must ask, What is left in order to commit the crime? o This test requires the actor to either be physically near where the crime is to be committed o Ex. Crime is attempted murder. Last act test o An attempt occurs at least by the time of the last act but this test does not necessarily require that each and every act be performed on every occasion. Examples: o Attempted bank robbery - has all the equipment to rob a bank and is in the car driving towards the bank Unequalivocality - Guilty Once started driving towards the bank his actions speak for themselves Proximity - Not guilty Would not be guilty until the got to the bank; this includes still waiting in the parking lot of the bank Last Act - Not guilty Would not be guilty until the walks into the bank o Ex: Attempted Murder - gets his gun goes to the victims house and waits in the bushes for the victim to arrive. Unequivocality - Guilty His actions of having the gun and being in the victims bushes speaks for itself Proximity - Not Guilty would not be guilty until the victim would have arrived home (Rizzo) Last Act - Not Guilty would not be guilty until he was actually pointing the gun at the victim

Defenses: Impossibility CL Factual Impossibility - NO DEFNSE o guilty because of what thought he was doing o Is no Defense occurs when the defendant despite his intentions could not complete his intended crime because of facts or conditions unknown to him or beyond his control.

Mistake about attendant circumstances is a factual impossibility and therefore not a defense. o Ex. if you thought you were selling cocaine, but it was actually baking powder, you are still guilty of attempt. Therefore facts unknown here are not a defense. Going to buy crack from guy in the corner, who is actually a cop, is still guilty for attempted drug charge even though it is impossible for the person to get crack from a cop. True Legal Impossibility - DEFENSE o s actions do not constitute a crime o Cannot make something a crime by thinking it is crime when the act is not actually illegal o Ex attempted narcotics possession (Tylenol), possessing Tylenol thinking that it is illegal but it is really not illegal o Remember - this is the converse of mistake of criminal law What the s belief about what the law says is irrelevant because the actions of the are not illegal o ONLY comes up in attempt cases

Impossibility MPC Not a defense. MR evaluated on the facts and circumstance as the defendant believes them to be. Abandonment CL Not a defense Abandonment MPC If D abandons his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose, then D can have a defense of abandonment Key Elements: o (1)Must voluntarily have a change of heart on the criminal purpose o (2)Must successfully prevent the commission of the crime Terms Defined o Voluntary = must NOT be motivated by external factors o Complete = must NOT be postponing the crime or transferring it to a different victim Ex.

5 Only MPC - no CL*** With purpose of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct which would constitute such crime or an attempt to commit such crime or which would establish his complicity in its commission or attempted commission Collateral MR - results dont matter REMEMBER - commands, encourages, requests Difference between solicitation and complicity? For example: if one asks, do you want to kill my wife? this is solicitationthis is offer. Once accepted, then it becomes conspiracy. Justifications (goes with vi. Excuses):

A justification defense deems conduct that is otherwise criminal to be socially acceptable and non-punishable under the specific circumstances of the case. Justification focuses on the nature of the conduct under the circumstances. AR + MR + no justification excuse = guilty Self- Defense - CL Must have a reasonable belief that substantial risk of death or SBI is about to occur. Deadly force vs. Non-deadly force o This is a proportionality test. A defendant can use deadly force if the threat against the defendant was deadly. The response must be calibrated to the threat. No retreat necessary o May defend ground at home (and work) Mistake of Self-defense test: o There exists a possibility of mistake of fact about the level of the threat. o Must be honest and reasonable regardless of MR for the crime o Reasonable Person Test Must be objectively reasonable, not subjectively Objective v. Subjective: o Objective: Facts & Information Physical attributes, geography of scenario Knowledge, context Background, experiences o Subjective: Personality & Reactions Mental attributes; e.g., temper, skittish Abusive relationships abused victims react differently to situations Emotions; e.g., degree of fear or anger Self-Defense MPC 3.04 (1)Use of NDF is justified when B believes it is immediately necessary to defend against unlawful force by A on the present occasion. (2)(b) no DF unless B believes it is necessary to defend against DF by A (b)(i) even if so, no DF when B was a purposeful deadly force aggressor in the same encounter. (b)(ii) even if so, no DF when B knows he can avoid DF necessity with complete safety by retreating retreat rule for MPC. Mistake of Self-Defense 3.09 o (1) justification unavailable if Bs belief of unlawfulness of force by A is a mistake of crim law o (2) If Bs belief (or failure to acquire knowledge) about justification is reckless or negligent, then the justification is unavailable for reckless or negligent crimes, respectively. o (3) If B is otherwise justified, but recklessly or negligently injures or creates a risk of injury to innocent persons, the justification is unavailable for reckless or negligent crimes, respectively, against those persons Self-Defense MPC v. CL CL emphasizes (a) reasonableness, (b) an all-or-nothing defense; the MPC emphasizes (a) recklessness and (b) a partial defense rule.

Escalation/aggressor (part of self-defense): In CL, if A starts a fight with B, and B pulls a knife, A will lose. A will lose either by getting killed with a knife or he has lost his ability to claim self-defense because he started the fight. o Aggressor must express his intent to end the fued before he will be allowed to claim for a self-defense because he has abandoned his intent to be the aggressor. In MPC, if A is the aggressor and B escalates the fight to a knife fight, then A can still use deadly force and argue self-defense. Basically, In CL, if you start the fight, you cant use deadly force while under MPC, you are still allowed to use it. If there is a case where one of the parties involved in the dispute leaves, he cannot come back later and claim self-defense. Defense of Home CL: may use deadly force to prevent a felony (even non-violent), but not to prevent trespass or misdemeanor o Make my day may shoot someone in your own house regardless of homeowners subjective belief. MPC o MPC 3.06(1)(a) You can use non-deadly force when you believe it is immediately necessary to stop unlawful entry or trespass. o MPC 3.06(3)(d) Deadly force for deadly force must calibrate to what kind of force you are approached with. Defense of Personal Property must make a request to desist, then you may use NDF when you believe it is immediately necessary to: o Prevent unlawful carrying away of personal property, OR o Retake personal property immediately or in fresh pursuit, or when possessor has no claim of right Only allowed to use deadly force when the thief is actually using deadly force. If you attack the thief with deadly force, the thief would be allowed to retaliate with deadly force and use self-defense as a justification. Defense of Others General Rule Subject to retreat provisions, Section 3.05(1) justified force by an intervenor in order to protect a third party if: o (1) he uses no more force to protect the third-party than he would be entitled to use in self-protection, based on the circumstances as he believes them to be; o (2) under the circumstances as he believes them to be, the third party would be justified in using such force in self-defense; and o (3) He believes that intervention is necessary for the third partys protection. Ex. A attacks V but V is capable of defending self. Therefore Defense of others is not excusable because V can defend himself and to claim this defense, the 3rd party must not be able to defend themselves. Necessity - CL

Difference between self-defense and necessity, the force comes from a nonhuman threat in necessity as opposed to a self defense which is invoked from another human being. Requirements of the Defense Approximately one-half of states now statutorily recognize a necessity defense. Generally speaking, a person is justified in violating a criminal law if the following six conditions are met: o (1) The defendant must be faced with a clear and imminent danger. o (2) There must be a direct causal relationship between the action and the harm to be averted. o (3) There must be no effective legal way to avert the harm. o (4) The harm that the defendant will cause by violating the law must be less serious than the harm he seeks to avoid. The defendants actions are evaluated in terms of the harm that was reasonably foreseeable at the time, rather than the harm that actually occurred. o (5) There must be no legislative intent to penalize such conduct under the specific circumstances. o (6) The defendant must come to the situation with clean hands, i.e., he must not have wrongfully placed himself in a situation in which he would be forced to commit the criminal conduct. Limitations on the rule The availability of the necessity defense may be further limited to: o (1) emergencies created by natural forces; o (2) non-homicide cases [see Regina v. Dudley and Stephens, 14 Q.B.D. 273 (1884)] o (3) protection of persons and property only, excluding for example, the protection of reputation or economic interests. Necessity MPC 3.02(2) otherwise unlawful conduct is justified if: o (1) the defendant believes that his conduct is necessary to avoid harm to himself or another; o (2) the harm to be avoided by his conduct is greater than that sought to be avoided by the law prohibiting his conduct; and o (3) there is no legislative intent to exclude the conduct in such circumstances. [MPC 3.02(1)] If you are reckless or negligent in creating the situation, you cannot claim necessity. You cannot claim necessity if you place yourself in the position. Necessity MPC v. CL Unlike common law, the Code does not require that the harm be imminent or that the defendant approached the situation with clean hands. Furthermore, the common law limitations regarding natural forces, homicide cases, and property and personal are inapplicable to the Codes necessity defense.

Excuses: Opposite of justification because you are not doing the right thing. The four excuses are Infancy (being a minor under 18 in most cases), entrapment, duress and insanity. Excuse defenses focus on the defendants moral culpability or his ability to possess the requisite mens rea. An excuse defense recognizes that the defendant has caused some social harm but that he should not be blamed or punished for such harm. Infancy

Too young to understand what you are doing. Duress CL Generally speaking, a person may be acquitted of any offense except murder if the criminal act was committed under the following circumstances: o (1) Another person issued a specific threat to kill or grievously injure the defendant or a third party, particularly a near relative, unless he committed the offense; o (2) The defendant reasonably believed that the threat was genuine; o (3) The threat was present, imminent, and impending at the time of the criminal act; o (4) There was no reasonable escape from the threat except through compliance with the demands of the coercer; and o (5) The defendant was not at fault in exposing himself to the threat. Duress MPC 2.09(1) Duress is an affirmative defense to unlawful conduct by the defendant if: o (1) he was compelled to commit the offense by the use, or threatened use, of unlawful force by the coercer upon his or another person; and o (2) a person of reasonable firmness in his situation would have been unable to resist the coercion. 2.09(2) - The defense is unavailable if the defendant recklessly placed himself in a situation in which it was probable that he would be subjected to coercion. If he negligently placed himself in such a situation, however, the defense is available to him for all offenses except those for which negligence suffices to establish culpability. Duress MPC v. CL The defense may be raised in murder prosecutions under MPC but not CL. Insanity An excuse for an illegal act. You have AR and MR but there is another factor for why you are not guilty. Several tests to determine insanity defense: o MNaughten Test: Cognitive test (what is in the head). Looks exclusively at defendants comprehension of reality. Under this test, defendant is acquitted if they did not know the nature of what they were doing or they did not know that what they were doing was wrong. o Control Test/Irresistable Impluse test: volitional test (cant control actions) aware of what you are doing but cannot stop it. Asks about the defendants ability to control his behavior. Very difficult to satisfy this test. Under CL, defendant must prove that he would still commit the act even if he was standing next to a cop. o MPC test (cognitive or volitional test) 4.01 Cant appreciate nature or wrong of their acts or Conform his or her behavior to the requirements of the law. This test does not require total mental incapacity. Dont have to go as far as control test to get acquitted for volitional acts. Two points when the mental state is important

o At the time of the act in question o At the time of trial You cant put someone on trial who doesnt understand what they are dealing with. At this point, a person could be put on meds so we can put them on trial. o There is no constitutional right to keep yourself insane to avoid trial. Complicity AR CL: Principle in the first degree person who does the crime (AR) aid and abet o Ex. encourages, assists, advises, conspires and omits a legal duty. equally as liable as the person who actually committed the crime principle in the 2nd degree present for the crime (AR) driver in the getaway car accessory before the fact not present for crime (AR) buying a gun for someone to commit a crime accessory after the fact assists known felon Modern law (CL & MPC) rejects complicity liability for accessories after the fact; instead charge obstruction of justice or related offenses. Accessory after the fact is no longer charged just like the principle actor in the crime. You may be charged with obstruction of justice or witness tampering or something else. If you are part of the conspiracy before the crime to do something after, you are still guilty of the crime just like the principle actor. Under CL, if you try to help and the offender doesnt know, and you dont succeed, you are not guilty. (different in MPC) Under CL, if there is no principle, even when an act is done to aid someone in an act, if the act is not carried out the person cannot be charged with complicity. Complicity MR CL Specific intent towards the object offense or principal offense. Pinkertons Doctrine - a party to a conspiracy is responsible for any criminal act committed by an associate if it: (1) falls within the scope of the conspiracy; or (2) is a foreseeable consequence of the unlawful agreement. Complicity AR MPC 2.06 (1) Defendant is guilty for own conduct or conduct of another for whom defendant is legally accountable (2) legally accountable (a) for defendants innocent agent, (b) by offense itself, or (c) when defendant is an accomplice. (3) A is Os accomplice if (a) with purpose of promoting or facilitating the commission of the offense: (these are the AR for MPC Complicity) (i) A solicits O to commit it (ii) A aids or agreesto aid or attempts to aid O in planning or committing it (iii) A fails to carry out legal duty to prevent O o O is offender and A is accomplice Omission and Complicity (under CL and MPC):

 x. xi.

failure to act will only create liability if you have a duty to act simply being present will not make you liable unless you have a duty except if your presence at the crime is viewed as encouragement to the principle. Presence without objection of something suggests approval or encouragement of the crime and therefore everyone would be liable of the same crime. (example of the weed at a party and saying boooo to show objection) A legal duty is created here just like it was under crime of omission. (family relationship, contractual relationship, etc Under MPC, if you attempt to aid, it doesnt matter whether the offender knows of your actions or whether the attempt actually helped, you are guilty. The purpose is to punish the purposeful but incompetent internal attempt (the defendants attempt)

xii.

Complicity MR MPC 2.06 (3) (4) Need purpose to promote or facilitate Conspiracy CL AR Need to have an agreement and an overt act. Overt act: anything other than the agreement. Agreement: must be made between two people or more (must be bilateral agreement). If there are three people, A, B and C, and B and C are cops, there is no conspiracy because the only criminal is A. When the conspiracy takes place, the charges are not merged. Therefore, the actor will have the charge of conspiracy as well as the charge for the act he is conspiring to commit. (does not merge) MR Specific intent toward the object offense. Pinkertons Doctrine - a party to a conspiracy is responsible for any criminal act committed by an associate if it: o (1) falls within the scope of the conspiracy; or o (2) is a foreseeable consequence of the unlawful agreement. Cannot convict accomplice unless principle could be convicted of the offense . Conspiracy MPC 5.03 (1)(5) AR Agreement and overt act Unilateral agreement is still valid for liability therefore, if Agreement can be implied or tacit. It does not have to be explicit or specific. MPC merges a conspiracy charge into a subsequent attempted or completed object offense. MPC. 5.05(3) you are charged with conspiracy or the completed crime. MR 5.03(1) Purpose to promote or facilitate the offense. 2.06(7) can convict accomplice even if principle cannot be or isnt convicted. Complicity and Conspiracy - Other Issues (MPC and CL) Derivative Liability: Innocent agent rule (under MPC and CL)

xiii.

o Defendant is deemed the primary actor, 2.06(2)(a) the innocent agent has no idea what is actually happening. The feigning accomplice scenario o F(accomplice) sets up R(principal) Plan is to go to store, break in and steal stuff. F will be the look out and R will be the burglar. F is faking because as soon as the plan is done, F calls police to tell them what the plot is and when it is happening. Police is now a witness that F testified. When crime takes place, police are on the scene and arrest F and R. R is committing the crime has AR and MR. F has the AR, as the lookout, but does not have the MR because he is faking it. He set up R his intent is that R get arrested. Under both MPC and CL, R is guilty and F is not.

The feigning principle scenario o Same fact pattern reverse roles Now R is the lookout and F, the faker, is the one who breaks into the store to commit the offense. R has the AR and MR of complicity But, do we have a principal??? F has the AR but not the MR so the principal is not guilty here.

o CL: neither party is guilty (because there is no convictable principal R is shielded by Fs MR defense) o MPC: if principal had AR of offense and accomplice had AR+MR of complicity, then accomplice is guilty The actual law on this point is not clear. Different jurisdictions have resolved it while others do not have an answer or solution to this. Law professors cant agree on what the law should be. He found 6 different positions in supplements on this.

For purposes of this class, the MPC rule he has on these notes is what we need to know.

Limits of Liability

The victim of the offense (i.e., the person the offense was designed to protect) cannot be an accomplice or conspirator in the crime against him/herself. o 2.06(6)(a)-(b) and 5.04(2)

Whartons Rule for conspiracy: no conspiracy to commit an offense which by definition is a group liability crime (e.g., adultery, dueling) o There must be more than one person to commit a conspiracy for certain group liability crimes. o Unless there are extra members in the group this is the exception to the rule.

Corrupt motive doctrine for conspiracy pg. 786 (Only MPC) o Mistake of law is ordinarily not a defense. o This is the defense to the mistake of law as a defense.
o

This probably only applies to malum prohibitum crimes where it would be logical or understandable for a party not to know about the certain rules didnt think they were committing any illegal behavior. From Lexis: This doctrine states that in addition to the usual mens rea requirements of conspiracy (i.e., intent to agree, and intent to commit the substantive offense), the parties to a conspiracy must also have a corrupt or wrongful motive for their actions.

Leaving a conspiracy getting out You can withdraw from a conspiracy but it will not bar you from liability on anything that happened before the withdrawal.
o

Still guilty of conspiracy charge, but no future liability

o Advise conspirators or tell police, 5.03(7)(c) Renunciation of Conspiracy (MPC only) o Erases liability on conspiracy charge, 5.03(6)
o

Must thwart success of conspiracy

o Must be complete and voluntary, just like abandonment of attempt, 5.01(4). The only way to get completely out of a conspiracy charge is to stop the conspiracy from happening. Therefore, the conspiracy must still be going on to be able to stop it. Must renounce before the conspiracy merges to attempt. To erase liability for conspiracy, you must prevent the conspiracy.

o CL once you are guilty of conspiracy, there is nothing you can do to stop or erase the charges
o

MPC allows ppl to erase that liability

Ending Complicity Termination of complicity (CL and MPC)

o o o

2.06(6)(c): A is not an accomplice to O if A terminates his complicity prior to Os crime* and A wholly deptrives [his complicity] of effectiveness or A makes proper efforts to prevent the crime (tell police or otherwise) *note this includes an attempt by O

o Any kind and all complicity by accomplice must be negated to avoid complicity. (aid, agreement to aid, soliciting, etc.)
II.

RAPE - CL
Traditionally, rape was defined as unlawful carnal knowledge of a woman by force and against

her will
Modern sex offenses: Unlawful Carnal knowledge Of a woman By force Against the will eliminated expanded* expanded controversial retained

AR for Rape

Carnal knowledge = vaginal intercourse

Sex + Non-Consent + Force(maybe depending on statute) = rape [AR] Force

Actual Force is defined as actual force, violent or physical strength, that is something above and beyond the actual sex. Constructive force is a threat doesnt really have to be communicated. o Intimidation doesnt have to be overt, it can be implied.

Actual force is not required to prove rape but constructive force is.

The element to focus on is the defendants threat, not the victims fear. Not sufficient to prove that the victim was afraid, rather it must be that the victim was afraid because of something the defendant did.

Non-Consent The victim manifested an objection in some way. There must be an objection. In the absence of such, the defendant may win. If the consent or agreement to have sex is brought by force, then there is no consent, there is only submission. Consent can be withdrawn during the encounter. If the sex continues, it becomes rape.

MR for Rape

Rape is a general intent crime A negligence MR in most CL jurisdictions Mistake of fact must be honest and reasonable Intoxication unavailable as MR defense (historically, moral wrongs exception too)

[in the MPC, rape is a recklessness crime]

Mistake of Fact:
Rarely implicated in real rape cases: dispute is identity, not consent In acquaintance rape, the issue is mostly consent Difficult factual determinations in other cases Is one person lying? (lopez FN5 look to the highlighted portions on pg 621) Or are they both telling the truth but perceived the situation very differently? (Weiner)

Social science research suggests a high frequency of misunderstandings in acquaintance rape cases (e.g., are stipulations to boundaries genuine?) not in the book standard of proof beyond a reasonable doubt

Other issues in MR for Rape

Rape shield provisions: reject CL position on unchastity; accusers sexual history is inadmissible except in narrow conditions (e.g., another source of evidence, prior conduct with D) Termination of consent: sex must cease immediately when consent is terminated, In re John Z. Incompetence to consent: some persons are legally incapable of giving consent What about intoxicated persons? D and/or V o Most states say an intoxicated person is not able to give valid consent What MR does the defendant need to have about that incapacity.

o Marital Rape

Cant rape your wife anymore.

Statutory Rape Label derives from origin: elements of crime defined by parliament in statute, in addition to CL rape statutory rape was strict liability on age element So no mistake of fact defense (unlike CL rape) Even if reasonable mistake of age

Modern law includes SL child sex offenses E.g., Utah statutes in Elton

2 elements in statutory rape: Sex Age

Today, most jurisdictions have two tiers of child sex offenses, based on age: V under 13: strict liability on age V 13-16 and D is 4+ years older: general intent o o If the def is within 4 years of the v, then no crime In these cases, the def could say that he reasonably thought the victim was older. If the judge believes def, then no crime.

Force or non-consent are not elements of these crimes, instead only (1) sex and (2) childs age

III.

Above the age of consent (e.g., 16), the adult sex offenses apply (e.g., nonconsent, force)

HOMICIDE - CL AR Any act or omission causing the death of another human being AR for homicide is the same for all types of homicide. MR Is what determines the application of homicide Malice aforethought Homicide with malice aforethought = murder Conduct is any act or omission Circumstance is another human being Result is causing a death

Homicide without malice aforethought = manslaughter deliberate and premeditated Some states means preconceived plan, Bingham But some states means just intent to kill, Carroll Today, D&P is not the only basis for capital murder

Murder has malice aforethought - Four categories of murder: (1) specific intent only category where defendant intends to kill another human being. (2) felony murder (1) and (2) are 1st degree murder because of the specific intent to kill

(3) depraved mind murder (4) specific intent to cause great bodily harm (3) and (4) are 2nd degree murder because of the specific intent to cause great bodily harm which results in death.

Defendant knew they created a very high risk of death and didnt care whether death occurred or not.

Manslaughter does not have malice aforethought. Voluntary means you had a specific intent to kill but were provoked

common law heat of passion o (1) in fact provoked (and still enraged) o (2) legally adequate form of provocation must be a certain kind of homicidal rage. mere words are never sufficient, no matter how insulting or offensive or provoking. If only words provoke someone to kill another, it is considered murder. (no matter how strongly fucked up they are admitting someone fucked your wife is not enough even though I probably would beat the living shit out of that person lol.) only certain kinds of conduct qualify as legally adequate: mutual combat, assault, battery, illegal arrest, adultery, and violent or sexual.assault on a close relative. if someone is violent towards you and that makes you go nuts and kill them, we will consider it manslaughter and not murder (if its one of the above). re adultery: if a spouse walks in on the other spouse committing adultery, it will be considered manslaughter if that spouse kills the other person.

o o o

(3) objectively reasonable homicidal rage (4) no cooling off period The provocation has to produce the killing - not that the provocation produced the decision to killInstinct basically Last straw theory - pg. 341 highlighted - provoking event that would be considered an event that could

be charged with manslaughter - person doesnt do anything about it then - but spouse continues to bring it up and talk shit about it - then the person kills the spouse. In this case, there may be the last straw theory exception. the external provocation must continue for this to work. however there could be internal provocation (enrage yourself overtime about the incident). This would not fall under the last straw theory and person would be charged with murder.

IV.

Involuntary is just general intent towards causing death.

Homicide MPC AR is the same for all homicide (MPC and CL look above) MR Murder Purpose or knowledge (CL equivalent to specific intent murder) Extreme indifference to value of human life (EIVHL evil lol) Conduct is not technically P or K, but the conduct is so egregious, they still charge the defendant with it (CL equivalent to depraved mind murder).

MR Manslaughter Reckless Extreme mental or emotional disturbance (CL equivalent to provocation) will not be tested!

MR Negligent Homicide Negligence duh!!!

MPC doesnt have felony murder. V. Homicide and Mistake of fact 3 kinds of mistakes that are acceptable. Mens Rea

Guilty or not guilty o o o o P,K EI (extreme indifference) R N

Self defense mistake of fact Imperfect justification o

CL: (honest and reasonable = justification/ honest and unreasonable = guilty) homicide only exception to being guilty of murder where AR + MR exist (under mistake of fact defense) if reasonable, then charge reduced to manslaughter rather than murder.

MPC: all crimes - belief was R/N = R/N

MPC 3.09(2)

Provocation if defendant is provoked and escalates the argument because of a fear of serious bodily injury or death. Murder or manslaughter o o Doesnt happen too much Pg 512 3rd paragraph. if you are reasonable in killing in selfdefense, you are acquitted. If you are unreasonable in killing for self-defense, you can be charged with manslaughter and not murder. (imperfect right of self-defense)

VI.

Felony Murder Felony + murder = Felony Murder Imposes murder liability when (i) the [non-enumerated] felony is inherently dangerous What kind of felony? Used to be any kindnot anymore. Now it is just the dangerous felonies. And has an independent MR element unrelated to risk of Vs death [merger] o Independent felony which will not merge into homicide

Pg 420 in Barnett the felony must be independent of the homicide.

(ii) a death results as a natural and probable consequence of its commission. From the actions of a felon in furtherance of the felony [agency] If there is a statute indicating when the felony counts for felony murder than you are straight. An inherently dangerous felony is a felony that has a high probability that death will result (not just injury not DUI or speeding for example)

So it must be a dangerous felony but not a homicidally dangerous felony CL Rape is inherently dangerous When FM applies, deaths which would otherwise be manslaughter (e.g., GI) or no crime at all (e.g., accidents) are punished the same as Specific Intent to kill. Causation of the death that is what needs to occur during the felony not the actual death itself. Felony murder and Complicity If a death is caused by one of the felons FM makes all co-felons guilty of murder If a death is caused by someone else FM cannot apply , due to the agency rule Complicity (and conspiracy) only applies to crimes committed by fellow criminals But other homicide liability may exist, e.g., under the Provocative Act Doctrine.

VII.

Causation Only matters for results elements. But for cause + proximate cause Factual cause - But for the result would not have occurred without the defendant behavior or actions Proximate cause - There could be several factual causes. We must find which of the causes is to be legally held accountable for the death.

 Dependant intervening cause = homicide by defendant Independent intervening cause = homicide not by the defendant. Instead homicide by intervenor. There is no rule to determine if cause is independent or dependent. It is a judgment call up to the court. Medical negligence does not break the chain of causation from the defendants harmful behavior. evil doctor is the only person that can break the chain of causation if the doctor intentionally allows the person to die.

Standard of causation for criminal law is proof beyond a reasonable doubt. VIII.